Extension of time
Labour & European Law Review Weekly Issue 228 28 July 2011
The three month time limit for unfair dismissal claims can only be extended if a Tribunal is satisfied that it was not reasonably practicable for it to be presented beforehand. In John Lewis Partnership v Charman, the Employment Appeal Tribunal (EAT) said that it was not reasonably practicable for a claimant to present the claim in time when he did not know about the time limit, had decided to wait for the outcome of an internal appeal but then lodged his claim very soon afterwards.
Following his dismissal on 13 March 2010, Mr Charman lodged an internal appeal which was heard on 24 May. The company sent him a letter on 28 June, telling him his appeal had been unsuccessful but, as he had gone to Denmark on holiday for a month, he did not receive it until mid July when a friend arrived with his post.
He then contacted his father who did some research online and lodged a claim on his behalf on 21 July. Mr Charman said that, up until that point, he had been completely unaware that any time limits applied and had just assumed it was more sensible to wait for the outcome of an internal appeal before going ahead and lodging a Tribunal claim.
As the three-month time limit had expired on 12 June, the Tribunal had to decide whether or not it had jurisdiction to hear the claim.
Section 112 (a) of the Employment Rights Act 1996 states that Tribunals cannot hear a complaint unless it was presented:
“(a) before the end of the period of three months beginning with the effective date of termination, or
(b) within such further period as the Tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.”
The employment Tribunal held that as Mr Charman had been unaware of the time limits, it had not been reasonably practicable for him to present his claim in time. As he had lodged the claim as soon as he could after learning the outcome of the appeal, it decided it had jurisdiction to hear the claim.
And the EAT agreed.
It ruled that the “starting-point is that if an employee is reasonably ignorant of the relevant time limits it cannot be said to be reasonably practicable for him to comply with them”.
In this case, it was clear that Mr Charman was unaware of the time limits. The question, said the EAT, is whether that “ignorance” was reasonable. It would not be reasonable if he “ought reasonably to have made inquiries about how to bring an employment Tribunal claim, which would inevitably have put him on notice of the time limits. The question thus comes down to whether the Claimant should have made such inquiries immediately following his dismissal”.
It inferred that the Tribunal had formed the view that it was reasonable for Mr Charman and his father not to make such inquiries at the stage of the initial dismissal decision but to await the outcome of the internal appeal.
The EAT said that the judge's finding might be thought to be "somewhat on the generous side", but did not think it could possibly be said to be perverse.
This case appears to go against clear authority that it is not reasonable to await the appeal decision before presenting a claim. The EAT in this case distinguished those decisions on the basis that the claimant here was ignorant of time limits and that his ignorance was reasonable.
It is likely that the decision would have been different if the claimant was advised by their trade union, as they would then have been treated as having the knowledge of a skilled advisor who should have been aware of the time limits even if the claimant was not.